FREE

WRONGFULLY CONVICTEDWRONGFULLY INCARCERATED

Wrongfully Convicted. Wrongfully Incarcerated.

Senator Patrick Leahy, a ranking member of the Senate Judiciary Committee, has written, "As a former prosecutor, I know that nothing presents a greater risk of convicting an innocent person than an incompetent lawyer. Far too often, defendants find their lives in the hands of underpaid court-appointed lawyers who are inexperienced, inept, or uninterested." See Patrick Leahy, Serenity Now or Insanity Later?: The Impact Of Post-Conviction DNA Testing On the Criminal Justice System, 35 New. Eng. L. Rev. 605, 606 (2001).

Kris obviously didn't want to go to trial with an "inexperienced" assistant state public defender, but Richard "Rick" Roth, the former Sheriff of Monroe County, Florida, deprived him of the means to retain the counsel of his choice, i.e., Roberta Fine, a leading attorney in Key West, Florida, by authorizing his in-house general counsel, Mark Willis, to use the taxpayer-funded resources of his Key West office to represent Kris' ex-fiancé, Marcella Gunderson, in the various civil actions that he had filed against her (merely seeking the return of his personal property, motor vehicles, and boat after she refused to hand these things back over to him). See Helton v. Gunderson, 708 So. 2d 1029, 1029 (Fla. 3d DCA 1998) (noting that Gunderson was being represented by Willis), on appeal after remand, 802 So. 2d 1152, 1152-53 (Fla. 3d DCA 2001) (noting that Gunderson was continuing to be represented by Willis).

Later, though, Judge Gerald Cope and Judge Alan Schwartz (1) granted a motion for rehearing filed by the State of Florida; (2) withdrew the three-judge panel's original, unanimous opinion; and (3) issued a split opinion affirming Kris' conviction based upon an entirely new analysis of the circumstantial evidence adduced during his trial. See Helton II, 641 So. 2d at 149-54.

However, Judge Joseph Nesbitt dissented, opining that Kris is at least entitled to a new trial because Hooper was per se ineffective for failing to use exculpatory gastric contents evidence to show jurors that the victim was murdered shortly after he ate his "light" dinner of chicken, rice, and strawberry yogurt at 6:30 p.m. -- or well before Kris arrived home (where the crime had allegedly taken place) at 9:30 p.m. See Helton II, 641 So. 2d at 154-56 (Nesbitt, J., dissenting).

This earlier time of death is also corroborated by other readily available evidence of Kris' innocence. For example, following Gunderson's fortuitous "discovery" of the victim's body outside the Little Torch Key, Florida home she shared with Kris (shortly after he was alleged to have committed the murder sometime around 1:30 a.m.), an ambulance rushed the victim to Fishermen's Hospital in Marathon, Florida, where the emergency room physician, Dr. Don Weiffenbach, remarkably observed that he appeared to have been dead for "hours" rather than "minutes.

In any event, Judge Nesbitt ended up concluding that Hooper's deficiency was "specific" and "substantial" and that "[t]here can be no doubt that this [exculpatory gastric contents] evidence might have affected the verdict rendered” by jurors because the purely circumstantial evidence upon which Kris was convicted was so "meager." See id. at 156. On the other hand, Judge Cope and Judge Schwartz declined to determine whether Hooper was effective or not because they believed -- unlike Judge Nesbitt -- that the record was "wholly inadequate" to address the issue on direct appeal. See id. at 154 n.11. Thus, this thin, two-judge majority simply affirmed Kris' conviction "without prejudice" to his right to raise the issue in a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See id.

Therefore, Kris' family had to retain Black, a prominent Miami, Florida attorney, to timely file a rule 3.850 motion in the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, claiming that Hooper was ineffective for failing to use the exculpatory gastric contents evidence to show jurors that the victim was murdered shortly after he ate his "light" dinner of chicken, rice, and strawberry yogurt at 6:30 p.m. -- or long before Kris arrived home on Little Torch Key at 9:30 p.m.

In fact, Hooper was so "inexperienced" that even following his relocation to Tampa, Florida, he continued to overlook the significance of an alleged offense having been committed far, far outside the time frame alleged by the prosecution, thus directly resulting in another hapless client, Jorge Burgos, being wrongfully convicted and sentenced to life imprisonment for a capital offense when he was otherwise entitled to the entry of a judgment of acquittal. See Burgos v. State, 667 So. 2d 1030, 1031-33 & n.2 (Fla. 2d DCA 1996).

Meanwhile, the State of Florida persuasively argued that Kris wasn’t prejudiced by Hooper's ineffectiveness based upon its representations that (1) the gastric contents evidence couldn't have "seriously" narrowed the time of death prior to 9:30 p.m.; and (2) the supposed lack of rigor mortis and lividity instead "conclusively" established that the victim died just shortly before 1:30 a.m. (or when Kris was at home).

Even so, Senior U.S. District Judge Norman C. Roettger, Jr. spent three days in Key West, Florida to conduct an evidentiary hearing, thus allowing the federal district court -- unlike the state postconviction and appellate courts -- to accurately assess the merits of Kris' ineffective assistance of counsel claim after receiving sworn testimony from Hooper and a couple of "pathology experts," Dr. John Feegel and Dr. Michael Bell.

After several months of "painstaking" consideration of the "whole record," Judge Roettger actually granted Kris' "untimely" § 2254 petition after finding that he was prejudiced by Hooper's failure to investigate and present exculpatory evidence which proved that his client wasn’t home when the victim was murdered. See Helton IV, 85 F. Supp. 2d at 1325-34.

To be sure, Judge Roettger found -- directly contrary to the representations which the State of Florida had just made to the state postconviction and appellate courts -- that (1) the supposed lack of rigor mortis and lividity didn't establish, "conclusively" or otherwise, that the victim died shortly before 1:30 a.m. (or when Kris was at home on Little Torch Key), see id. at 1330-31; and (2) the gastric contents evidence was exculpatory because the victim should've digested his "light" meal of chicken, rice, and strawberry yogurt within one or two hours of eating at 6:30 p.m. -- or at least one hour before Kris arrived home (where the crime had allegedly taken place) at around 9:30 p.m., see id. at 1329.

Judge Roettger also found -- directly contrary to the representations which the State of Florida had made to the state postconviction and appellate courts -- that "there is sound, scientific authority supporting the time of death evidence," that "[i]n a case such a this, proof that [Kris] was not at the scene at the time of the murder is inviolable proof of [his] innocence," and that "[a] jury could be convinced, if not outright, then at least to the extent the theory [of an earlier time of death based upon the exculpatory gastric contents evidence] interposes a reasonable doubt." See id. at 1332-33.

Judge Roettger then pointed out that "there exists no reasoning, no analysis, no findings of fact, and no legal basis for the [state postconviction and appellate courts' summary] denial of [his] ineffective assistance of counsel claims," see id. at 1335 and thus there is no indication at all whether or not [they] applied [the U.S. Supreme Court’s decision in] Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and reached their decisions accordingly," see Helton IV, 85 F. Supp. 2d at 1336.

Not surprisingly, then, Judge Roettger concluded that the summary denial of Kris' ineffective assistance of counsel claims by the state postconviction and appellate courts ran afoul of Strickland because Hooper was ineffective for failing to investigate and present jurors with the exculpatory gastric contents evidence which proved that Kris wasn’t home when the victim was murdered. See id. at 1336-37.

As noted above, this earlier time of death is corroborated by Dr. Weiffenbach's stunning observation that the victim appeared to have been dead for "hours" rather than "minutes." It is also worth noting that in over thirty years on the bench, Judge Roettger granted only three § 2254 petitions. See Kelly v. Singletary, 222 F. Supp. 2d 1327, 1367 n.7 (S.D. Fla. 2002) (noting this extraordinary fact). Thus, Judge Roettger accurately described Kris' case as being one of the "rare" examples in which a state prisoner had actually raised a "successful" claim of ineffective assistance of counsel. See Helton IV, 85 F. Supp. 2d at 1337.

Sure, the State of Florida appealed, but the U.S. Court of Appeals for the Eleventh Circuit in Atlanta, Georgia unanimously affirmed Judge Roettger's grant of Kris' "untimely" § 2254 petition after likewise finding that the state postconviction and appellate courts' decisions on his ineffective assistance of counsel claims "were summary denials, assigning no reason" and that they had either "ignored" Strickland or their application of it was "unreasonable" because Hooper was ineffective for failing to investigate and present jurors with "persuasive" proof of Kris' innocence. See Helton V, 233 F.3d at 1326-27.

Still, the State of Florida was able to persuade the federal court of appeals to grant its petition for rehearing and vacate the three-judge panel's original opinion, see Helton v. Sec'y for Dep't of Corrs., 257 F.3d 1262 (11th Cir. 2001) ("Helton VI"), before issuing a revised opinion that reversed Judge Roettger's grant of Kris' § 2254 petition just because it wasn’t "timely" filed by Black -- a purely procedural technicality unrelated to the merits of his ineffective assistance of counsel claim against Hooper, see Helton VII, 259 F.3d at 1311-15.

Therefore, Kris was forced to return to the state postconviction court, where he and Daisy Capote prepared a motion for postconviction DNA testing which Black timely filed pursuant to Florida Rule of Criminal Procedure 3.853. Indeed, out of approximately 88,576 Florida prisoners (including about 377 on death row), Kris was the only one who filed comments supporting an "emergency" recommendation and report by the Florida Criminal Procedural Rules Committee to amend Florida Rule of Criminal Procedure 3.853(d) to remove an arbitrary deadline for the filing of rule 3.853 motions. See In re Amendments to Rules of Crim. Proc. 3.853(d), 938 So. 2d 977, 977 & n.1 (Fla. 2006).

Kris sought postconviction DNA testing on (1) the physical evidence found on the victim's body, including an unidentified hair; (2) the physical evidence seized from inside the home which he shared with Gunderson on Little Torch Key, including the clothing and shoes that he allegedly wore while murdering the victim; and (3) the physical evidence collected from outside their Little Torch Key home, including a blood-stained rock wrapped up in a white paper towel (recovered from the very spot where the victim was fortuitously "discovered" by Gunderson) because a careful examination revealed that neither he nor the victim had any cuts, scratches, or abrasions.

Even so, the state postconviction and appellate courts refused to even consider whether just one exculpatory DNA test excluding Kris and/or positively identifying someone else, especially Gunderson (perhaps confirming that her blood is on the rock recovered from the spot where she fortuitously "discovered" the victim), can be coupled with what the federal courts have repeatedly found to be the other "inviolable" and "persuasive" proof of his innocence to further exonerate him of the victim's murder.

This resulted in the state postconviction and appellate courts reaching an erroneous conclusion that postconviction DNA testing could in no way shed any light on Kris' guilt or innocence. Compare Helton v. State, 947 So. 2d 495, 498-99 (Fla. 3d DCA 2006) ("Helton VIII"), with Zollman v. State, 820 So. 2d 1059, 1062-63 (Fla. 2d DCA 2002) ("On the issue whether the requested [postconviction] DNA testing will exonerate the defendant, the determination whether [his or her] allegations are facially sufficient [under Rule 3.853] requires consideration of the facts of the crime itself and the other available evidence").

Later, Kris timely filed a federal civil rights complaint under 42 U.S.C. § 1983 in the Southern District of Florida, alleging that Bob Peryam, the former Sheriff of Monroe County, Florida, and Dennis Ward, the former State Attorney for the Sixteenth Judicial Circuit, in and for Monroe County, Florida, violated his constitutional rights by refusing to allow the release of physical evidence for postconviction DNA testing (after they failed to respond to his letters requesting the release of the evidence for testing at absolutely no cost to them).

Therefore, Kris appealed to the Eleventh Circuit, arguing that Judge Martinez erred by dismissing his § 1983 complaint because the Southern District of Florida does not lack subject matter jurisdiction under the Rooker-Feldman doctrine (since he’s not asking this federal district court to review and reverse the adverse state court judgment summarily denying his rule 3.853 motion) and because his § 1983 complaint demonstrates that postconviction DNA testing will exculpate him.

Rick Ramsay, the new Sheriff of Monroe County, Florida, and Catherine Vogel, the new State Attorney for the Sixteenth Judicial Circuit, in and for Monroe County, Florida, then examined Kris' case with a fresh set of eyes and decided to employ brand new litigation strategy which didn't dispute his argument that postconviction DNA testing will exculpate him (although they do still contend that his § 1983 complaint is barred by the Rooker-Feldman doctrine).

We believe that Judge Martinez' decision should've been reversed and that Ramsay and Vogel should've been ordered to release the physical evidence for postconviction DNA testing at absolutely no cost to them. However, the Eleventh Circuit ended up affirming Judge Martinez' decision for a number of different reasons. SeeHelton v. Ramsay, 566 F. App’x 876, 876-78 (11th Cir. 2014) (unpublished).

Nevertheless, Vogel could simply agree to release certain pieces of physical evidence for postconviction DNA testing at our expense. See Craig Watkins, The Dallas District Attorney's Office Creates the Conviction Integrity Unit, D Magazine, Jan. 2010, at 27 ("[W]e started looking at those files [where postconviction DNA testing had been denied] and saw there was legitimacy to these claims [of innocence], outside of the scientific part. We looked at the facts of the case and all that. We thought, there is some legitimacy to all this. . . .").

Indeed, Vogel's opposition to postconviction DNA testing is contrary to the publicly-stated policy of the Florida Prosecuting Attorneys Association, Inc. that the State Attorneys of Florida "do not oppose requests for DNA testing where the facts indicate that the results would be dispositive of the person's guilt or innocence" and that "[r]egardless of whether there is a deadline to request testing or [even] if a deadline has passed, it has been and continues to be our policy that DNA testing occur." See Letter from Bruce H. Colton, then-President, Florida Prosecuting Attorneys Association, Inc., to the Honorable Jeb Bush, then-Governor, State of Florida at 1 (Aug. 24, 2005).

But because no less than five judges, federal and state, have already found that Kris was wrongfully convicted due to Hooper's failure to investigate and present jurors with "inviolable" and "persuasive" proof of his innocence, we are urging Vogel to file a motion to dismiss the indictment in State of Florida v. Kris Helton, No. CF-K-91-1331 (Fla. 16th Jud. Cir. Ct. Monroe Cty. Aug. 22, 1991), thereby fulfilling her prosecutorial duty to do "justice," since there are "serious" and "substantial" doubts as to his guilt. See United States v. Weber, 721 F.2d 266, 267-69 (9th Cir. 1983). Indeed, as Dr. Martin Luther King, Jr. pointed out, "The time is always right to do what is right."

If not, we hope that U.S. District Judge Donald Middlebrooks will grant Kris relief under Federal Rule of Civil Procedure 60(b) because (1) the U.S. Supreme Court has decided that a state prisoner's "convincing" claim of factual innocence can overcome the one-year limitation period for the filing of a § 2254 petition, see McQuiggin v. Perkins, --- U.S. ----, ----, 133 S. Ct. 1924, 1931-34, 185 L. Ed. 2d 1013 (2013); and (2) Judge Roettger has found that (a) "there is sound scientific authority supporting [Kris'] time of death evidence," (b) "[i]n a case such as this, proof that [he] was not at the scene at the' time of the murder is inviolable proof of [his factual] innocence," and (c) "[a] jury could be convinced, if not outright, then at least to the extent the theory [of an earlier time of death] interposes a reasonable doubt," see Helton IV, 85 F. Supp. 2d at 1332-33.

However, "[g]iven the unique and troubling nature of this case," i.e., "a likely innocent man has [currently] been in prison for twenty-[four] years," Judge Middlebrooks can find that "law" and "justice" now require some "extraordinary" measures (or something more than a new trial), including (1) Kris being immediately and unconditionally released from any form of custody; (2) the indictment pending against him in State of Florida v. Kris Helton, No. CF-K-91-1331 (Fla. 16th Jud. Cir. Ct. Monroe Cty. Aug. 22,1991), being dismissed; (3) the State of Florida being barred from retrying him for a crime he didn't commit; and (4) the State of Florida being ordered to expunge his wrongful conviction from its records and all references to him in the public record. See Lopez v. Miller, 915 F. Supp. 2d 373, 435 (E.D.N.Y. 2013).

If necessary, we'll urge the Florida Commission on Offender Review (the Hon. Melinda Coonrod, Commissioner/Chair; the Hon. Richard Davison, Commissioner/Vice-Chair; and the Hon. David A. Wyant, Commissioner/Secretary) to grant Kris parole when he becomes eligible in August 2016 because he’s "innocent" and was "wrongfully convicted." .See Reggie Garcia, Parole in Florida: What, Who, When and Why, Florida Defender, Winter 2013/2014, at 14 ("There are still 5,107 in mates who are eligible for parole, serving time in the State of Florida for felony convictions. Most of these inmates have received life sentences and are required to serve a minimum of 25 years before becoming eligible for parole. So, some people may ask, 'Why should we even consider parole?' Some inmates are innocent and were wrongfully convicted. . . ."); Stephen R.A. Knight, Parole in Florida, The Verdict, Jul.-Oct. 2014, at 3 (noting that "[p]arole is still viable" in Florida because "[s]ome inmates are innocent and were wrongfully convicted. . . .").

Meanwhile, we believe that Congress (the Senate and U.S. House of Representatives) can help prevent another "injustice" like this, i.e., the continued incarceration -- or even execution -- of an innocent person, see Steve Marshall, On Deadline: What others are reporting, Late legal filings a matter of life and death, USA Today, Mar. 13, 2009, at 3A (reporting that the Houston Chronicle "said defense lawyers failed to meet federally mandated filings for six inmates who were subsequently executed and that three [other] inmates lost their federal appeals because of botched filings"); Lugo v. Sec'y, Fla. Dep't of Corrs., 750 F.3d 1198, 1216 (11th Cir. 2014) (Martin, J., concurring in judgment) ("As I have looked into this problem, I have been struck by how widespread it is . . . [and by] my count, at least thirty-four [death row] inmates [in Florida] have missed their one-year filing deadline . . . [and two] of these thirty-four were recently executed . . ."); Laurel Cornell Niles, Death and Advocacy: A First-Year Lawyer's Lesson, Florida Defender, Spring 2014, at 33 (pointing out that Paul Howell "died without a meaningful review of his case by a federal court and without an explanation as to why."), by simply repealing (1) the one-year limitation period for state prisoners to file their § 2254 petitions, see 28 U.S.C. §§ 2244(d)(1)(A)-(D); and (2) the one-year limitation period for federal prisoners to file their motions to vacate under 28 U.S.C. § 2255, see 28 U.S.C. §§ 2255(f)(1)-(4); see also Sheryl Gordon McCloud, To limit post-conviction petitions, repeal the time limits, The Champion, Dec. 2002, at 36-37.

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